Response to the Report of the Access to Information Review Task Force: A Special Report to Parliament

PART A - MAJOR REFORMS

ii) Plugging Gaps in the Act's Coverage

The Access to Information Act applies only to institutions listed in Schedule I of the Act. There is no general principle dictating which institutions must be added to the schedule. The Cabinet has the authority to add to, but not subtract from, the schedule but it is not obliged to make additions to the schedule. This régime has resulted in an obsolete Schedule I wherein are listed institutions which no longer exist and from which are missing some institutions which are normally understood to be part of the federal governance apparatus.

The better approach would be to articulate in the law the criteria for inclusion in the Act's Schedule I and require Cabinet to add any qualified institution to the Schedule. Too much uncertainty would be introduced into the system by doing away with the schedule altogether. Institutions, especially new forms of enterprises engaged in public functions, need to know with certainty whether or not they are covered by the law; they deserve an avenue by which to challenge inclusion and the public deserves an avenue to challenge Cabinet's failure to include an institution in the Act's schedule.

The mechanism which is recommended is this: Cabinet should be placed under a mandatory obligation to add qualified institutions to Schedule I of the Act. Any person (including legal person) should have the right to complain to the Information Commissioner, with a right of subsequent review to the Federal Court, about the presence or absence of an institution on the Act's Schedule I. As at present, the Commissioner should have authority to recommend addition to or removal from the Schedule and the Federal Court, after a de novo review, should have authority to order that an institution be added to or removed from the Schedule.

Professor Alasdair Roberts, of Queen's University, has written thoughtfully about how freedom of information laws, traditionally designed to respect the public sector/private sector split, are becoming less and less effective. He reports that there is little consensus on how to deal with this problem; a variety of approaches have been adopted in jurisdictions with freedom of information laws. Here are some of the options:

• any organization would be covered that undertakes important public functions, whether it is publicly or privately owned;
• any organization would be covered which exercises "functions of a public nature" or which provides under contract with a public authority "any service whose provision is a function of that authority";
• any organization would be covered whose activities raise the prospect of an abuse of power; and
• any organization would be covered if failure to do so would have an adverse effect on the fundamental interests of citizens.

The clear challenge for Canada is to find criteria for determining coverage of the Act which are as objective as possible so as to make them clearly understood and facilitate their application in specific cases. To that end, it is recommended that any institution, body, office or other legal entity be added to Schedule I of the Access to Information Act if it meets one or more of the following six conditions:

It is, of course, not possible to predict with certainty the forms of institutional arrangements which will arise in future, through which functions of governance will be exercised. In recent years, air traffic control services have been moved from a government department, where they were subject to the right of access, to a private corporation, where they are not covered. In future years, there may be changes in the way governments manage corrections, drug approvals, grants and contributions, policing, emergency response measures--the list goes on. Accountability through transparency should not be lost merely because the modality of service provision has changed. The proposed criteria for inclusion are intended to be objective, yet flexible enough to be useful guides for the future.

Under the above-described criteria for inclusion, examples of institutions not now listed in the Act's Schedule I which would be added, include:

The House of Commons and its components

The Senate and its components

The Library of Parliament

The Chief Electoral Officer

The Information Commissioner

The Privacy Commissioner

The Commissioner of Official Languages

The Auditor General

The Canadian Broadcasting Corporation

Canada Post Corporation

Canadian National Railways

Atomic Energy of Canada Limited

Navcan

The Canadian Blood Service

The Canadian Wheat Board

The St. Lawrence Seaway Corporation

The Canada Pension Plan Investment Board

The Export Development Corporation

It is important to note that the criteria set out above would also capture offices of MPs and senators as well as the Supreme Court, Federal Court and Tax Court. In its 1987 report, the Justice Committee recommended that these bodies be explicitly excluded from the coverage of the Act. Former Information Commissioner, John Grace, did not recommend coverage of these bodies in the proposals for reform he tabled in Parliament in 1994.

There is wisdom in the view that the judicial branch of government, which must adjudicate complaints under the Access to Information Act and make binding orders thereon (unlike the Commissioner who is called on to investigate and recommend), should not itself be subject to the Act's requirements, nor to the investigative jurisdiction of the Information Commissioner. More importantly, by convention and constitution, court proceedings are open to the public to a much greater degree than are the activities of other institutions of governance.

As well, there is wisdom in the view that the offices of MPs and Senators should not be covered by the law. Their role in governance is mediated through the institutions of party and Parliament. Their decisions and actions do not cry out for accountability in the same way as do those of government ministers or the various institutions of Parliament of which individual members are part.

Consequently, it is recommended that the Act include a specific exclusion from its coverage for the Supreme Court of Canada, the Federal Court of Canada, the Tax Court of Canada and for the offices of members of Parliament and Senators.

Two further requirements will be necessary to prevent records from "leaking" out of institutions covered by the Act into those which are not. First, the most common way this occurs is for an institution which is covered to contract out a particular function (for example an harassment investigation or a managerial review or a strategic plan) and to provide that all records relevant to the contracted activity (except, of course, the deliverable) will be kept in the possession of the contractor.

To counteract this practice, the Access to Information Act should deem that all contracts entered into by scheduled institutions contain a clause retaining control over all records generated pursuant to service contracts.

Second, institutions have sought to limit the scope of access by arguing that records held in ministers' offices or in the office of the Prime Minister, are not subject to the right of access. As of this writing there is litigation in the Federal Court wherein the Crown is asserting this restrictive interpretation of the Act. The Act should be amended to end the uncertainty by making it clear that the geography of where a record is held is not determinative of whether or not the record is subject to the right of access. In particular, the right of access in section 4 should explicitly state that it includes any records held in the offices of ministers and the Prime Minister which relate to matters falling within the ministers' or Prime Minister's duties as heads of the departments over which they preside.